National Emergency Declaration Bill 2020 - Commentary on Ministerial Responses [2021] AUSStaCSBSD 68 (17 March 2021)

• National Emergency Declaration Bill 2020
• Power for delegated legislation to modify primary legislation (Henry VIII clause)42
• Tabling of reports46

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National Emergency Declaration Bill 2020

Purpose	This bill seeks to establish a legislative framework for the declaration of a national emergency by the Governor-General, on the advice of the Prime Acting Attorney-General
Portfolio	Attorney-General
Introduced	House of Representatives on 3 December 2020
Bill status	Received the Royal Assent on 15 December 2020

Power for delegated legislation to modify primary legislation (Henry VIII clause)^[42]

2.150 The committee initially scrutinised this bill in Scrutiny Digest 18 of 2020 and requested the Attorney-General's advice.^[43] The committee considered the Attorney-General's response in Scrutiny Digest 3 of 2021 and reiterated its request for the Attorney-General's further advice as to the appropriateness of amending the National Emergency Declaration Act 2020 (NED Act) to:

• provide that determinations made under section 15 cease to be in force after three months; and

• provide that before making a determination under section 15, a minister must be satisfied that Parliament is not sitting and is not likely to sit within two weeks after the day the determination is made.^[44]

Acting Attorney-General's response^[45]

2.151 The Acting Attorney-General advised:

In its Scrutiny Digest 18 of 2020, the Committee observed that a determination made under section 15 will cease either on the day specified in the determination or may continue while a national emergency declaration is in force (including any extensions of the period in which the declaration is in force). This approach was intended to ensure that Commonwealth support could be provided without interruption and with certainty in an emergency deemed to be of national significance, including where a declaration is extended because the emergency is ongoing beyond the initial three month period.
In light of the Committee's comments, consideration will be given to whether it is appropriate to amend the NED Act to include further safeguards around the making of determinations under section 15, including through time limitations, while maintaining the policy objective of the provision to empower ministers to reduce 'red tape' requirements in legislation where this would benefit the public, or a section of the public, during or following a national emergency.

Committee comment

2.152 The committee thanks the Acting Attorney-General for this response. The committee welcomes the Acting Attorney-General's advice that consideration will be given to amending the NED Act to include further safeguards around the making of determinations under section 15, including through time limitations. The committee also notes the Acting Attorney-General's advice that any amendments to the Act will need to take into account the policy objective of the provision to empower ministers to reduce 'red tape' requirements in legislation where this would benefit the public, or a section of the public, during or following a national emergency.

2.153 The committee welcomes the Acting Attorney-General's undertaking that consideration will be given to amending the National Emergency Declaration Act 2020 to include further safeguards around the making of determinations under section 15.

2.154 Noting that the Senate Legal and Constitutional Affairs Legislation Committee is currently undertaking an inquiry into the National Emergency Declaration Act 2020, the committee draws the Acting Attorney-General’s undertaking to the attention of that committee.

Tabling of reports^[46]

2.155 The committee initially scrutinised this bill in Scrutiny Digest 18 of 2020 and requested the Attorney-General's advice.^[47] The committee considered the Attorney-General's response in Scrutiny Digest 3 of 2021 and requested the Attorney-General's further advice as to:

• the appropriateness of amending paragraph 17(4)(a) of the National Emergency Declaration Act 2020 to provide that reports on the exercise of powers and the performance of functions in relation to a national emergency declaration must be given to the minister responsible for administering the National Emergency Declaration Act as soon as practicable, and in any case not later than 14 days after the national emergency declaration ceases to be in force;

• the appropriateness of amending subsection 17(5) of the National Emergency Declaration Act 2020 to provide that:

• the above reports must be tabled in each House of the Parliament as soon as practicable, and in any case not later than 14 days after the Minister receives the reports; and

• that the reports are to be presented in accordance with procedures in each House for the presentation of documents out of sitting in circumstances where the reports are ready for presentation, but the relevant House is not sitting.^[48]

Acting Attorney-General's response

2.156 The Acting Attorney-General advised:

As noted by the Committee, section 17 of the NED Act includes requirements for relevant Ministers to report on the exercise of powers or the performance of functions under national emergency laws, and provides timeframes and presentation requirements for those reports. These reporting requirements were included as an important safeguard to ensure that national emergency declarations and the powers and functions that may be used once a declaration is in force are effective, proportionate and subject to appropriate oversight.
In light of the Committee's comments, consideration will be given to the appropriateness of amending the NED Act to provide for more specific requirements around the tabling and presentation of reports to ensure that there is appropriate Parliamentary accountability, particularly outside of sitting periods.

Committee comment

2.157 The committee thanks the Acting Attorney-General for this response. The committee welcomes the Acting Attorney-General's advice that consideration will be given to amending the NED Act to provide for more specific requirements around the tabling and presentation of reports to ensure that there is appropriate Parliamentary accountability, particularly outside of sitting periods.

2.158 The committee welcomes the Acting Attorney-General's undertaking that consideration will be given to amending the National Emergency Declaration Act 2020 to provide for more specific requirements around the tabling and presentation of reports to ensure that there is appropriate Parliamentary accountability, particularly outside of sitting periods.

2.159 Noting that the Senate Legal and Constitutional Affairs Legislation Committee is currently undertaking an inquiry into the National Emergency Declaration Act 2020, the committee draws the Acting Attorney-General’s undertaking to the attention of that committee.

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[42] Clause 15. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

[43] Senate Scrutiny of Bills Committee, Scrutiny Digest 18 of 2021, pp. 14-16.

[44] Senate Scrutiny of Bills Committee, Scrutiny Digest 3 of 2021, pp. 37-39.

[45] The Acting Attorney-General responded to the committee's comments in a letter dated 11 March 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 5 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.

[46] Clause 17. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(v).

[47] Senate Scrutiny of Bills Committee, Scrutiny Digest 18 of 2020, pp. 16-18.

[48] Senate Scrutiny of Bills Committee, Scrutiny Digest 3 of 2021, pp. 39-40.